JEFF MERCER LLC v. STATE THROUGH DEPARTMENT OF TRANSPORTATION (2021)

Writ application granted. See per curiam.

Defendants seek review of a ruing of the district court which sustained their peremptory exception raising the objection of no cause of action, but declined to dismiss plaintiff's action against them.

La. Code Civ. P. art. 934 addresses the effect of sustaining the peremptory exception:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. [emphasis added].

In the instant case, the district court sustained defendants’ exception and further made a finding that it did not anticipate plaintiff would be able to amend its petition to allege a cause of action against defendants. Based on our review of the facts presented, we agree there is no conceivable possibility plaintiff could state a cause of action against defendants. See Alexander & Alexander, Inc. v. State, Div. of Admin., 486 So.2d 95, 100 (La. 1986) (explaining “the right to amend is not so absolute as to permit the same when such amendment would constitute a vain and useless act.”). Accordingly, the clear and unambiguous language of La. Code Civ. P. art. 934 mandates that plaintiff's claim must be dismissed.

DECREE

For the reasons assigned, the writ is granted. The judgment of the district court sustaining the peremptory exception raising the objection of no cause of action in favor of defendants, the State of Louisiana through the Department of Transportation and Development, Willis Jenkins, John Eason, and Pam Higginbotham, is amended to provide the claim of plaintiff, Jeff Mercer, LLC, against these defendants is dismissed with prejudice.

McCallum, J., recused.